(Air)Time is Money

BROOKE GLADSTONE: And I'm Brooke Gladstone. Earlier this year the Governor of Washington State approved a new law that would hike gas taxes by 9-1/2 cents over the next four years. Last week, opponents handed him petitions with enough signatures to get an initiative on this November's ballot to eliminate that law. The petition drive owed its success in no small part to the efforts of two men, Kirby Wilbur and John Carlson, daytime hosts on a conservative Seattle talk radio station, KVI. For weeks Wilbur and Carlson had railed against the new tax, directing listeners to a website where they could contribute money and volunteer to gather signatures. Political advocacy? Clearly. But could it also be considered a political campaign contribution? According to a local judge's ruling earlier this month, it certainly can. The ruling has attracted the attention and the concern of media watchers around the country. Among those concerned is Bruce Johnson, a Seattle media lawyer. Bruce, welcome to the show.

BRUCE JOHNSON: Thank you.

BROOKE GLADSTONE: Can you explain what the judge's ruling said, exactly?

BRUCE JOHNSON: Well, the judge determined that these two talk show hosts, by heavily promoting this particular anti-gas-tax initiative, they were basically part and parcel of the campaign, and therefore their contributions should be treated as in kind contributions and reported to the Public Disclosure Commission. Our Public Disclosure Commission Law has an exemption for the news media, but by issuing the ruling Judge Wickham essentially concluded that this was not news, feature, commentary or editorial, but was part and parcel of promoting an election campaign.

BROOKE GLADSTONE: The judge did say he wasn't restricting campaigning by any media outlet; he was merely requiring it to be disclosed to the general public. So is there any cause for alarm here?

BRUCE JOHNSON: The judge was applying a public disclosure law, which I think is fair and equal to all concerned. The problem arises when you start having limitations on the amount of contributions, and those limitations are then applied to the media.

BROOKE GLADSTONE: So in certain political instances there would be a limit on speech simply because there's a limit on the amount of your contribution, if it's evaluated in dollars.

BRUCE JOHNSON: That's correct. The state regulators would essentially evaluate the cost of airtime on KVI, or conceivably if the amount of editorial space in a particular newspaper and the like, and then at some point it would be illegal to make any more editorializing in support of a particular candidate or an opposition to a candidate.

BROOKE GLADSTONE: But, to be fair, Carlson and Wilbur weren't simply editorializing in support of the measure, were they? They actually helped to organize the campaign, to get it on the ballot. In fact, Kirby even bragged about having written the measure.

BRUCE JOHNSON: They were clearly advocating and pushing this initiative. There's no question about it.

BROOKE GLADSTONE: Once upon a time, of course, in the days of the founding fathers all media outlets were partisan operations. And I know you've said that since the Constitution was written when the press was so very partisan, there's no reason why these First Amendment rights can't be extended to these very partisan media operatives.

BRUCE JOHNSON: Let's be very frank about talk radio. The KVI's of the world are clearly the inheritors of a very partisan history of newspapering. The political parties have always been involved in supporting the news media to one degree or another. And it's only in recent generations that we've seen the concept of objective journalism.

BROOKE GLADSTONE: But campaigns have changed enormously too, from what they were in the days of the founding. Now campaigns are floating on money to an extent they never have been before. They rely on huge corporate PACs or labor unions. And it's all about air time. That's where that money goes. So the founding fathers may have been responding to talk radio like reality back right, but they weren't coping with, some would say, a principle even more important to maintaining our democracy, fair elections.

BRUCE JOHNSON: Well, Thomas Jefferson's pocketbook may not be as big as the National Rifle Association's, I'll concede that. But the fact remains that with the Internet, with bloggers, more and voices are being heard than ever before. And I would argue that we're really not dealing with an area that is completely shaped exclusively by money and the big special interests.

BROOKE GLADSTONE: I know you're a bit troubled by this decision, Bruce. You told the Olympian newspaper that first they come for the KVI's of the world, later on maybe they come for the Sulzberger's, the Sulzberger's being the publishers of the New York Times.

BRUCE JOHNSON: I think that to the extent that you have campaign finance laws which restrict speech in any way, it is very hard to say well, we'll restrict speech but we're going to exempt the media. Two things result from that. One, the people who are subject to the restrictions simply turn into the media themselves. And back in 2004, the National Rifle Association decided it would become a member of the media, in part in reaction to the campaign finance decisions. Two, it's very difficult to distinguish who's a member of the media from who is not. Of course, the bloggers believe they're clearly members of the media, and yet they're not considered mainstream media by some folks. So it's very hard to determine how far these types of decisions will go, once you restrict campaign speech of any sort.

BROOKE GLADSTONE: Do you expect that, with the combination of McCain Feingold and the increasing fuzziness about who is and who isn't a journalist, we'll have more and more of these sorts of cases cropping up in other parts of the country?

BRUCE JOHNSON: I think it's as natural as the day follows the night. So it's a natural outgrowth of these so-called reforms. I think you're going to see more and more efforts on the part of partisan organizations and the like to basically end up owning the printing presses themselves, so they can say look, we're exempt from these types of laws under the First Amendment. The problem is that once you go down the avenue of campaign regulation, it's difficult for regulators to know where to stop.

BROOKE GLADSTONE: All right. Thank you very much, Bruce.

BRUCE JOHNSON: Thank you.

BROOKE GLADSTONE: Bruce Johnson is a partner in the Seattle law firm Davis, Wright, Tremaine.